By Laura Stavetski
In the digital age, where nearly everyone and everything relies on technology, a multitude of legislation intending to preserve data privacy and prevent hacking has emerged. In passing such legislation, Congress must carefully balance the interests of the general public with the interests of website operators. However, at what point does a ban on hacking interfere with the public’s First Amendment rights?
On June 29, 2016, the American Civil Liberties Union (ACLU) filed a lawsuit in the United States District Court for the District of Columbia challenging the constitutionality of the Computer Fraud and Abuse Act (CFAA). The CFAA is intended to prohibit hacking and essentially states that anyone who intentionally accesses a computer without authorization, or exceeds authorized access, and as a result obtains information from any protected computer if the computer involves interstate or foreign communication, will be punished under the Act. The ACLU, filing on behalf of a group of academics and researchers, claims that the CFAA prohibits the proper investigation of discriminatory practices on the Internet. The ACLU asserts that the CFAA’s “exceeds authorized access” provision has been interpreted to forbid an individual from visiting a website in a manner that violates the website’s terms of service. As a result, websites intentionally set terms of service that make it illegal for researchers to access relevant information without violating the law.
The CFAA identifies seven types of criminal activity that is prohibited under the law. These types of criminal activity include obtaining national security information, compromising confidentiality, trespassing in a government computer, accessing to defraud and obtain value, damaging a computer or information, trafficking in passwords, and threatening to damage a computer. Additionally, the Act defines the term “protected computer” as a computer (1) exclusively for the use of a financial institution or the United States government, or used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or (2) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States.
A large number of website terms of service provide a ban on activities such as recording publicly available information, providing false information, or creating multiple accounts for a single user. These terms of service have become problematic for researchers and academics who wish to use these methods to look for discrimination on the Internet. The ACLU therefore asserts that the CFAA is in direct violation of the First Amendment of the United States Constitution because it limits everyone from gathering the publicly available information that is necessary to identify discriminatory practices on the Internet.
As more of our everyday transactions move to the Internet, it becomes easier for companies to provide targeted advertisements to individual users based on race, gender, age, or sexual orientation. While this may be beneficial in some ways, it also poses a significant risk of discrimination. It is important that legislators keep in mind the potential risk for discrimination when creating laws for data protection. As it currently stands, it is unlikely that the courts will hold that the Computer Fraud and Abuse Act is unconstitutional. While it is necessary that researchers are able to compile research regarding online discrimination, it is also necessary that the United States be able to create laws that protect against hacking.
Student Bio: Laura is a Content Editor for the Journal of High Technology Law. She is currently a third year day student at Suffolk University Law School with a Business Law Concentration. She holds a B.A. in Economics from Roanoke College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
